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My reading of Breyer's ominous rumination today (“Today’s decision can only cause one to wonder which cases the Court will overrule next”) is a bit different from most takes I've seen. It's not, I think, just a warning about the fragility of abortion rights. 1/7
Sure, he's worried about abortion rights, Roe & Casey. But I read Breyer's line as a more general concern about a 5-justice conservative majority empowered to jettison precedents it doesn't like. And there are more imminent opportunities on the horizon than Roe & its progeny 2/7
I think his most pressing concern is agency deference, a facet of which (Auer v. Robbins) is on the chopping block in this term's Kisor v. Wilkie. Breyer was animated in the March oral argument; he doesn't want SCOTUS to intrude on agency independence scotusblog.com/case-files/cas… 3/7
Also: the justices have been discussing Klein v. Oregon in conference, another religious baker balking at making gay wedding cakes. Klein (which some justices seem to want to hear) would pose a direct challenge to Employment Div v. Smith (1990), a major free-exercise ruling 4/7
And Breyer's statement today carries undertones of resentment from last term's ruling in Janus v. AFSCME, which overturned a four-decade-old precedent regarding funding of labor unions. 5/7 economist.com/united-states/…
Breyer has proven to be strategic at times: if colleagues (Kavanaugh? Roberts?) is wavering at the moment on how to vote in Kisor or on a cert vote in Klein, his clarion call about the willy-nilly overturning of precedent may be designed to dissuade them. 6/7
That's obvs true on abortion rights, too, given the pending petition in Box v. Planned Parenthood, but I don't think his message is only (or mainly) about Roe/Casey. Roberts should be esp. sensitive to the neg. light cast on SCOTUS from overturning too many cases too quickly. 7/7
p.s. Another case Breyer is (rightly) worried the conservatives are itching to overturn is Lemon v. Kurtzman, a fraught 48-year precedent on church & state. He voiced this concern quite clearly in February. economist.com/united-states/…
